HEMANT GUPTA,J - (1.) THE plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit for possession of land measuring 81 kanals 6 marlas and 397 kanals 8 marlas situated at village Manghali and Khuda Kalan, Tehsil and District Ambala, was dismissed. This appeal raises the following substantial questions of law :- 1. Whether a widow would succeed as absolute owner of the estate of her deceased husband, prior to the commencement of the Hindu Succession Act, 1956, if there is no reversioner ?
(2.) WHETHER the plaintiffs can claim the estate of the deceased on the basis of caste and sub-caste, as nearest heir of the deceased ? 3. The said questions of law arises out of a suit for possession filed by the plaintiffs on the ground that they are Rajput by caste and Chauhan by Gotra and are resident of village Khuda Kalan, Tehsil and District Ambala. The plaintiff-appellants are agriculturists and according to the custom prevalent amongst the agriculturists, the plaintiffs are entitled to inherit the estate of one Ami Singh Rajput Chauhan who died without leaving any male or female issue. The mutation of the estate of Ami Singh Rajput was sanctioned in the name of his widow Smt. Kalahri. Smt. Kalahri died on 19.9.1955. The present suit for possession has been filed by the plaintiffs on 30.8.1967 on the ground that Smt. Kalahri has died issueless. Since her husband Ami Singh Rajput and Chauhan by Gotra has left no other collateral, therefore, the plaintiffs being pattidars and of the same Gotra are entitled to succeed to his estate. It is also alleged that the defendants were neither owners nor pattidars and, therefore, not entitled to take possession but the defendants have taken forcible possession of the same. Thakur Singh, the original defendant, contested the suit and alleged that Ami Singh was the real owner of the property including certain Baras but his father Bhondu was adopted by Ami Singh has made gift of certain land to Bhondu and certain other land was gifted to him by Maro, brother's wife of Ami Singh. Kalahri also executed a Will registered on 9.6.1917 in favour of Bhondu recognizing him as the sole successor. The custom alleged by the plaintiffs was denied and it was alleged that the suit is not maintainable and is beyond the period of limitation.
(3.) THE learned trial Court found that the plaintiffs are not related to the deceased in any way and that from the documents Exhibits D-1 to D-3 i.e., gift deeds executed by Ami Singh and Maro in favour of Bhondu and Will executed by Kalahri in favour of Bhondu, a finding was returned that Bhondu was living with Ami Singh even before his adoption as son and, therefore, the custom could come into picture only when there had been no adoption and no appointment of any heir. In respect of Issue No. 2, it was held that prior to enforcement of Hindu Succession Act, 1956, the agriculturists were governed by custom in matters of succession and that the property of Rajputs will not escheat but it will revert to the other members of the same community to the extent of equal shares. Since Bhondu was found to be the adopted son, therefore, the plaintiffs have no right in the estate of deceased Ami Singh. The learned trial Court also found that since Bhondu is established to be adopted son of Ami Singh, therefore, adoption will relate back to the death of Ami Singh. Under issue No. 6, it was held that there is no evidence that gift deeds Exhibits D-1 to D-2 registered on 18.5.1890 fabricated documents but were found to be acted upon by the revenue authorities and were not challenged for a long time. Therefore, the gift deeds cannot be challenged after several decades. In respect of Will, it was found that Will Exhibit D-3 dated 9.6.1917 is a registered document and admissible in evidence being more than 30 years old. It was found that more than 60 years have lapsed since the Will was executed and it is a registered document and that the Will was acted upon as the property was mutated in the name of deceased Bhondu. Under Issue No. 9, it was held that the plaintiffs are not related to deceased Ami Singh or Kalahri and no right vest in them merely because they belong to the same Gotra. The question of limitation was also decided in favour of the defendants as it was found that the gift deeds and the Will executed more than 60 years earlier cannot be challenged in the present suit.;